#### ALEXANDER PRICE and MARY H. PRICE v. NORFOLK SOUTHERN RAILROAD COMPANY.

(Filed 3 March, 1920.)

Waters^ — Surface Waters — Damages—Nétmgeiice—Evidence—Railroads— Dishes — Culverts—Instructions.

’ 'Evidence tending to show that onljud@¿'e the construction of defendant’s rail-road track, without culverts, waterjpd been ponded back on plaintiff’s land, Injuring his lands and crops, is^fafficient to sustain a verdict for damages in plaintiff’s favor, accruing, three years next before the commencement of the action, it being negligence in either event, whether the damages were caused by the building of the road or the defendant’s failure to keep its ditches clear or free from obstructions, etc.; and an instr action based upon evidence of this character embodying these principles, is correct.

Civil actioN, tried before Kerr, I.,- at November Term, 1919, of Okav'EN, upon these issues:

“1. Are plaintiffs the owners of the-land described in the complaint? Answer: ‘Yes.’

“2. Were the plaintiffs’ lands and crops damaged by the negligence of the defendant, as alleged in the complaint? Answer: ‘Yes.’

“3. If so, what damages are plaintiffs-entitled to recover? 'Answer: -‘$1,000.’ ”

The defendant appealed.

D. S. Ward for plaintiffs.

Moore & Dunn for defendant.

Brown, J.

We have examined the several exceptions to the evidence, and find no substantial error in them, certainly none that would justify us in ordering another trial, and we do not deem it necessary to discuss them. The prayer for instruction that upon the whole evidence, if believed, the jury should answer the second issue “No” was properly refused.

The plaintiff offered evidence tending to show-that the drainage was sufficient before the railroad was, constructed, but on account of the ditches being filled up, and there being no culvert, the water could not get through, and consequently injured the plaintiff’s land and crops by baching up on it. This evidence, if believed, makes out a cause of action, and entitles the plaintiff to recover damages for three years preceding the commencement of the action. Duvall v. R. R., 161 N. C., 448; Roberts v. Baldwin, 155 N. C., 276; Davenport v. R. R., 148 N. C., 287.

The defendant excepted to thé following charge: “If you find from the evidence, by its greater weight,' that the railroad company failed and *280refused to keep its railroad ditcb, or-ditcb.es, along its right of way open and free of obstruction, and failéd to keep tbe same clean in such a manner as to allow tbe water to flow along tbe same, and by reason of said negligence tbe flow of water was impeded, and tbe flow was turned upon the plaintiffs’ land, and stood thereon, and sobbed and soured tbe same, and destroyed tbe plaintiffs’ growing crops, and find tbat tbis endangered and probably caused tbe plaintiffs’ injury and damage, then you would answer tbe second issue ‘Yes.’ ”

Tbe learned counsel for tbe defendant insists tbat tbis charge is erroneous, because there is nothing in it which requires tbe jury to find tbat tbe water bad been diverted by tbe defendant from its natural course and turned upon tbe plaintiffs’ land.

Taking tbe charge as a whole, we think it a very clear exposition of tbe law, and tbat tbe jury could not have misunderstood tbe question ip controversy. It matters not whether tbe water was diverted from its natural course onto tbe plaintiffs’ land by tbe construction of the road,' or whether injury was caused by tbe defendant failing to keep its ditches on its right of way open and free of obstruction, so as to allow tbe water to flow along tbe same, and thereby tbe flow of water was turned upon tbe plaintiffs’ land by reason of said negligence. Either would constitute, if established, such negligence as would render tbe defendant liable for tbe injury incurred within tbe principle laid down, in tbe above cited cases.

No error.